A side agreement could void the Iran deal

By Mike Pompeo and David B. Rivkin Jr., September 6 2015 7:07PM in the Washington Post

The Iran Nuclear Agreement Review Act of 2015, which requires the president to submit to Congress the nuclear agreement reached with Iran, represents an exceptional bipartisan congressional accommodation. Instead of submitting an agreement through the constitutionally proper mechanism — as a treaty requiring approval by a two-thirds majority in the Senate — the act enables President Obama to go forward with the deal unless Congress disapproves it by a veto-proof margin. Unfortunately, the president has not complied with the act, jeopardizing his ability to implement the agreement.

The act defines “agreement,” with exceptional precision, to include not only the agreement between Iran and six Western powers but also “any additional materials related thereto, including . . . side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.” But the president has not given Congress a key side agreement between Iran and the International Atomic Energy Agency (IAEA). This document describes how key questions about the past military dimensions of Iran’s nuclear program will be resolved, as well as the precise operational parameters of the verification regime to which Tehran will be subject.

This omission has important legal consequences. At the heart of the act is a provision, negotiated between Congress and the White House, freezing the president’s ability to “waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran” while Congress is reviewing the agreement.

That review period was supposed to take 60 days and is triggered the day the president submits the agreement to Congress. However, because the president failed to submit the agreement in full, as the law requires, the 60-day clock has not started, and the president remains unable lawfully to waive or lift statutory Iran-related sanctions. Indeed, since the act also provides for the transmittal of the agreement to Congress between July 10 and Sept. 7, the president’s ability to waive statutory sanctions will remain frozen in perpetuity if Congress does not receive the full agreement Monday .

Congress must now confront the grave issues of constitutional law prompted by the president’s failure to comply with his obligations under the act. This is not the first time this administration has disregarded clear statutory requirements, encroaching in the process upon Congress’s legislative and budgetary prerogatives. The fact that this has happened again in the context of a national security agreement vital to the United States and its allies makes the situation all the more serious.

For Congress to vote on the merits of the agreement without the opportunity to review all of its aspects would both effectively sanction the president’s unconstitutional conduct and be a major policy mistake. Instead, both houses should vote to register their view that the president has not complied with his obligations under the act by not providing Congress with a copy of an agreement between the IAEA and Iran, and that, as a result, the president remains unable to lift statutory sanctions against Iran. Then, if the president ignores this legal limit on his authority, Congress can and should take its case to court.

Mike Pompeo, a Republican, represents Kansas in the House and is a member of the Permanent Select Committee on Intelligence. David B. Rivkin Jr., a constitutional litigator and a senior fellow at the Foundation for the Defense of Democracies, served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.